Draft Food Standards Agency Bill Published

Citation

(1999), "Draft Food Standards Agency Bill Published", British Food Journal, Vol. 101 No. 2. https://doi.org/10.1108/bfj.1999.070101bab.001

Draft Food Standards Agency Bill Published

Draft Food Standards Agency Bill Published

On 27th January, the Government published the draft Bill for the establishment of a "Food Standards Agency". The Bill (published as Command Paper 4249) is available from the Stationary Office; alternatively it can be accessed on the Internet at: http://www.official-documents.co.uk/document/cm42/4249/4249.htm

The following background information is based on the 'Introduction, Summary and Consultation Document' published with the draft Bill.

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  Introduction

  (1)The document initiates further consultation on the Government's proposals for changes in the arrangements for handling food safety and standards issues in the United Kingdom. It summarises progress since the publication of the White Paper The Food Standards Agency: A Force for Change (Cm 3830) in January 1998, and invites comments on the draft Food Standards Bill (Part II of this document). Subject to the availability of Parliamentary time, the Government hopes to be able to introduce the Bill before Parliament in the present 1998/1999 Session.

  Timetable for consultation

  (2) In order to allow time to prepare the Bill for introduction, comments must be received by no later than 24 March 1999.

  Responses to the White Paper

  (4) Over 1,000 responses to the White Paper were submitted. Copies were placed in the Library of both Houses of Parliament in May 1998, and are available to interested organisations and members of the public through the Ministry of Agriculture, Fisheries and Food Library, 10 Whitehall Place, London, SW1A 2HH (Tel: 0645-335577).

  (5) The Government's proposals for the Food Standards Agency as set out in the White Paper received widespread support from consumer organisations, public health professionals, food law enforcement bodies, research interests and the food, farming and associated industries. They endorsed the Government's proposal to establish a Food Standards Agency which would be a new UK body, operating at arm's length from Ministers, taking a strategic view of food safety and standards issues across the whole of the food chain and able to make public its views on matters related to food and public health.

  The Draft Food Standards Bill

  (6) The draft Bill implements the proposals set out in the White Paper where primary legislation is the appropriate vehicle for doing so. Some other aspects of the White Paper proposals will be implemented through amendments to secondary legislation or administrative action.

  (7) The Bill is being published in draft in order to ensure that it is thoroughly scrutinised and its practicality assessed before a final version is introduced to Parliament. The Government's aim in doing this is to improve the quality of the eventual legislation. Work will continue to refine the text in the light of comments made on the draft during the consultation period and further study of the draft clauses. A number of minor and miscellaneous provisions will also need to be added before the Bill is finalised. Account will also be taken of any report from the special Commons select committee which is to be set up to carry out pre-legislative scrutiny of the draft Bill.

  (8) Explanatory notes accompanying the draft Bill are intended to assist consultees in understanding the purpose and effect of the proposed legislative provisions.

  Scotland, Wales and Northern Ireland

  (9) Under the devolution legislation (the Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland Act 1998) responsibility for food safety and standards will be devolved to the new authorities in Scotland, Wales and Northern Ireland. This means that those food safety and standards functions which are currently the responsibility of the Secretaries of State for Scotland and Wales and, in Northern Ireland, of the Department of Health and Social Services will become the responsibility, respectively, of Scottish Ministers accountable to the Scottish Parliament, the National Assembly for Wales, and the Northern Ireland Assembly. Both the Scottish Parliament and the Northern Ireland Assembly will have powers to decide through primary legislation to introduce their own separate arrangements for handling food safety and standards. In Wales, the National Assembly for Wales will have powers to make secondary legislation.

  (10) Consultation on the White Paper demonstrated that there was support for the Food Standards Agency to be a new UK body, reporting to the devolved authorities as well as to the UK Government and accountable to the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly as well as to Parliament at Westminster. The Government believes that a single body to control and regulate food safety and standards in the UK is appropriate because it would be impractical and costly to duplicate the necessary scientific advice in all parts of the UK, and because it will facilitate the even implementation of food safety legislation, most of which has its origins in the EU. The Government also believes that it will be in the interests of consumers and food producers, manufacturers and retailers if they can be confident that consistent standards of food safety apply throughout the United Kingdom.

  (11) This Bill therefore provides for the Food Standards Agency to be a UK body. Special arrangements are proposed to ensure that the Agency is accountable to the devolved authorities and that they are able to operate their devolved functions effectively. These are described further in paragraphs 27 to 29. After the elections for the Scottish Parliament and the National Assembly for Wales on 6 May 1999, the Government will consult formally with those devolved bodies to establish whether they are content to proceed with legislation on a UK basis in the way proposed in this draft Bill.

  (12) In Northern Ireland, the Belfast Agreement provides for the establishment of six cross-border implementation bodies with the Republic of Ireland. It has been decided that one of these bodies will cover food safety. Details of the new body have yet to be worked out. Once the new Northern Ireland Executive is fully established, the Government will consult with them formally to ascertain whether they are content to proceed with a UK Food Standards Agency, as proposed in this draft Bill, and about the relationship with the proposed all-Ireland food safety body.

  The main features of the Bill

  (13) The main features of the Bill are as follows:

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    it establishes the Food Standards Agency, which will be a non-ministerial government department, and confers on it the necessary functions, powers and duties;

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    it provides for the Agency's chairman and members to be jointly appointed by the Secretary of State for Health and his counterparts in Scotland, Wales and Northern Ireland, to cover a balance of relevant interests and experience;

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    it sets out the Agency's general functions and gives it the right to make public any advice it offers to Ministers, government departments or other persons;

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    it provides new powers for the Agency to carry out surveillance and to propose regulations under the Food Safety Act 1990 to cover the full range of activities connected with the production and supply of food which might cause potential food safety problems;

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    it provides new powers for the Agency to set standards for, and monitor the performance of, local authority food law enforcement;it provides new powers to allow Ministers to make an Order applying the provisions of the Food Safety Act 1990 (modified as necessary) to animal feeding stuffs;

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    it provides that the Minister of Agriculture, Fisheries and Food's functions under the Food Safety Act 1990 and other primary legislation related to food will in future be exercisable by the Secretary of State for Health in England;

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    in Scotland, Wales and Northern Ireland the appropriate Minister or equivalent after devolution will remain responsible for these functions;

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    it spells out the Agency's future role under other primary legislation such as the Radioactive Substances Act 1993, the Trade Descriptions Act 1968, the Food and Environment Protection Act 1985 and Part VI of the Environmental Protection Act 1990 (which deals with genetically modified organisms);

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    a key part (entitled "General Provisions") of the Bill sets out how the Agency will exercise its functions and what powers Ministers will have to direct it or, as a last resort, to dismiss the members of the Agency, if there is a serious failure on its part.

  Financing the agency

  (14) The draft Bill includes new powers enabling the Secretary of State for Health and his counterparts in Scotland, Wales and Northern Ireland to introduce a levy on food premises. A separate consultation document is being published at the same time as the draft Bill which describes the Government's proposed scheme to raise the new costs associated with the Agency through an annual levy on food retailers and caterers. New resources raised through the levy will be additional to the existing budgets for central government's food safety and standards work which will be transferred from the Agriculture and Health Departments to the Agency when it is established.

  (15) The draft of clause 23 of the Bill, establishing the enabling provisions for the levy, is still provisional since it does not yet take account of the role of the devolved authorities in Scotland, Wales and Northern Ireland. The Government's intention is that the levy should apply in all parts of the UK in a consistent way. A further version of the clause, taking account of devolution, will be published as soon as it is available.

  (16) The separate consultation on the proposed levy scheme is being carried out in parallel with the consultation on the draft Bill. Copies of the consultation document on the levy scheme will be circulated to all those who commented on the White Paper or can be obtained from the various Government contacts.The guiding principles

  (17) The guiding principles set out in Chapter 2 of the White Paper are an important part of the arrangements for ensuring that the Agency acts in a reasonable, balanced and impartial way, taking full account of the requirements of democratic accountability. Considerable thought has therefore been given to the best way of reflecting the guiding principles in the Bill Table I a and Table Ib summarises how each of the guiding principles has been reflected in the legislation.

  

  Table I How the "guiding principles" from the White Paper have been incorporated into the Draft Bill.

  (18) The Agency's main aim is defined in the guiding principles as the protection of public health in relation to food. This aim will in principle apply to all its functions. In Clause 1 of the draft Bill, the Agency's main objective also includes the protection of other interests of consumers in relation to food, in addition to protection from risks to health. This is necessary to cover the Agency's responsibility for aspects of consumer protection in relation to food which are not directly health-related, such as food authenticity and many aspects of food labelling. However, the reference to "the interests of consumers in relation to food" must clearly be read in the context of the Bill as a whole and does not expand the scope of the Agency beyond that described in the White Paper.

  (19) The Bill requires that the Agency should draw up a statement of general objectives and general practices it proposes to adopt. This statement is expected to encompass the key features of the guiding principles as set out in the White Paper, and in particular those which cannot be imposed as a duty on the Agency under the legislation (the Agency will, of course, also be subject to the requirements of general administrative law). The requirements for openness and transparency and for wide consultation are therefore specified in the Bill as general objectives, which may be supplemented in the statement by more specific objectives relating to those principles, as well as by a description of the methods by which the Agency intends to achieve them. The statement will also cover the arrangements by which the Agency will facilitate good consultation and establish arrangements for co-ordination with other departments and agencies of Government (and the devolved authorities) which have an interest in the safety of food or which are relevant to the other interests of consumers in relation to food. This will be an important way of ensuring that the Agency is kept informed of relevant activities of other departments and agencies, and that it in its turn informs them of its own activities and advice which are relevant to their responsibilities.

  (20) Since the Agency is to operate in its day-to-day business at arm's length from Ministers, the Bill requires the Agency to be responsible for drawing up its own statement of general objectives and practices. However, the Agency remains accountable to the Secretary of State for Health and the devolved authorities, and therefore the Bill provides for Ministers to notify the Agency of specific objectives they wish to include and requires the approval of the Secretary of State and the devolved authorities for the statement. This will allow them to satisfy themselves that proper account is being taken of all the guiding principles and also of any relevant Government-wide procedural requirements and guidance (such as the Better Regulation Guide and principles). It would also enable them to include other important objectives such as the need to take account of sustainable development.

  (21) The Bill provides for the Secretary of State and the devolved authorities to issue directions to the Agency if it seriously fails to comply with the statement of general practice or to perform any of its duties; and to remove the appointed members of the Agency from office if they fail to comply with such a direction. Ministers would of course be expected to explain to Parliament and the public their reasons for deciding to exercise these powers.

  Administrative concordats

  (22) The Food Standards Agency will report to the Secretary of State for Health and his counterparts in the devolved administrations and will need to work closely with other government departments, in particular the Department of Health and the Ministry of Agriculture, Fisheries and Food, and with the devolved authorities in Scotland, Wales and Northern Ireland. The Government envisages that the relationship between the Agency and other departments and with the devolved authorities should be underpinned by a series of administrative concordats, which would be published documents, setting out the duties and responsibilities each will have in relation to the other. These concordats will, for example, cover such matters as the need for timely provision of information and consultation, arrangements for dealing with issues which cross departmental boundaries such as nutrition or the control of food-borne zoonoses and any necessary arrangements to cover the provision of services from one department to another. Since the Secretary of State for Health will be accountable to Parliament for the Agency (and his counterparts in Scotland, Wales and Northern Ireland to the devolved legislatures), the concordats will also need to establish the framework for dealing with Parliamentary business such as responding to Parliamentary Questions or correspondence from MPs.

  Nutrition

  (23) The Agency's functions will allow it to exercise the role which the White Paper envisaged for it in nutrition policy - in particular the provision of readily intelligible, scientifically based information about the nutritional content of individual foods and impartial and accurate advice on a balanced diet. The Agency will need to work closely with UK health departments who will retain responsibility for wider public health aspects of nutrition. The concordats between the Agency and the UK health departments will set out their respective responsibilities and the mechanisms which will be put in place to deliver the necessary close co-operation in this important and sensitive area. Pesticides and veterinary medicines

  (24) The Bill will require the Veterinary Products Committee and the Advisory Committee on Pesticides to include a member nominated by the Agency and will provide for the Agency to be consulted by the Veterinary Medicines Directorate (VMD) and Pesticides Safety Directorate (PSD) on veterinary medicines and pesticides policy issues which are relevant to food safety. VMD and PSD will however retain responsibility for all aspects of the authorisation process.

  (25) As regards the arrangements for surveillance of food for residues of pesticides and veterinary medicines, the Government is clear that the Agency will need to have extensive involvement and to work closely with PSD and VMD in discussing relevant surveillance programmes. The Bill also provides new surveillance powers which could be exercised in relation to pesticides and veterinary medicines, if necessary, as well as other aspects of food safety and consumer protection.

  (26) The Government has reviewed the proposed arrangements for undertaking surveys for residues of pesticides and veterinary medicines in the light of comments made on the White Paper and by the Agriculture Select Committee. It has concluded that responsibility should remain with PSD and VMD respectively, but with some additional safeguards including the introduction of structured and transparent processes for determining the scope and priorities of the surveillance programme. The Agency would also review the survey results and seek independent advice on their significance from the appropriate advisory committees.

  Detailed arrangements in Scotland, Wales and Northern Ireland

  (27) The draft Bill includes specific arrangements to take account of the needs of the administrations in Scotland, Wales and Northern Ireland after devolution (see paragraphs 9 to 12 above). There will be distinctly identifiable arms of the Food Standards Agency in Scotland, Wales and Northern Ireland. The draft Bill allows for:

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    separate executive bodies in Scotland, Wales and Northern Ireland, each with a director, and with responsibility for the organisation of the Agency and its activities in their part of the UK;

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    the creation of new Advisory Committees for Scotland, Wales and Northern Ireland, to give advice on food safety and standards issues in their part of the UK. The chairman of each of these Committees will be a member of the Agency with particular experience in food safety and standards matters in their part of the UK;

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    the Scottish Ministers, the National Assembly for Wales and the Northern Ireland Department would retain legislative powers in all the key areas, advised by the Agency;

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    the Agency will make annual and other reports to the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly as well as to Parliament at Westminster;

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    the devolved administrations would fund the costs of the Scottish, Welsh and Northern Ireland arms of the Agency, where these are not met through charges on industry.

  (28) As indicated in paragraphs 11 and 12 above, the arrangements described here are subject to approval by the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly.

  (29) Because the framework of legislation provided by the devolution Acts is still very new, some of its practical and legal implications are still being worked out. The drafting of this Bill as it affects Scotland, Wales and Northern Ireland will therefore be subject to further review during the consultation period.

  Reviews of public analysts (England and Wales) and scientific services (Scotland)

  (30) As foreshadowed in the White Paper, the Government has carried out independent reviews of the Public Analyst Service in England and Wales and the food-related Scientific Services in Scotland. Both of these reviews have reported and their reports have been published. Ministers are currently considering the reports and, in particular, whether there is any need to amend the relevant provisions of the Food Safety Act 1990 in the light of their recommendations. The Government will reach conclusions on whether any amendments to the Bill are necessary to take account of these points before the Bill is brought before Parliament.

  Notification of food borne illness

  (31) In the White Paper, the Government indicated that it was considering whether the arrangements for statutory notification of diseases should be extended to include reporting by clinical laboratories of certain specified (human) test results. It was envisaged that this change might be introduced as part of a general revision and streamlining of legislation on the control of communicable diseases. The Government is considering whether it might be appropriate to include within the provisions of the Food Standards Bill a power which would enable the Agency to operate a scheme of statutory notification of laboratory test results for specified food-borne illnesses. Such a scheme might assist the Agency in obtaining the information it needs to develop a national strategy for the control of food-borne zoonoses (i.e. diseases of, or organisms carried by, animals which are transmissible to humans, such as salmonella, E.coli etc.) as proposed in the White Paper. The Government may wish to include such provisions at a later stage when the Bill is introduced to Parliament.

  Regulatory impact assessment

  (31) A draft Regulatory Impact Assessment for the Bill is included in the Annex to this document and will also be included in the separate consultation document on financing the Agency. Comments are invited on this draft. Comments on the consultation on the draft Bill

  (32) The Government would welcome comments on any of the issues raised in this consultation document or on the draft Bill itself. In commenting on the draft Bill, it would be helpful if consultees would explain the intended purpose of any changes they wish to suggest rather than proposing specific drafting amendments.